Jones v. Township of Seguin

September 2, 2014

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Court:

Application/issue:

An appeal by the Applicant was made against the failure of the Committee of Adjustment of the Township of Seguin to approve an application for three new lots and against the approval by the Township of Comprehensive Zoning By-law No. 2006-125 with regard to a waterfront property at 189 Isabella Lake. The proposal was to create three parcels from the subject property which will divide the property into four seasonal residential lots with frontage on Lake Isabella. Issues included access on a private road and recreational carrying capacity.

Held:

Appeals dismissed.

Reasons:

The Board made a finding that the Clergy Principle, modified by James Dick, required that the applications would be tested against the policies in force at the time of application, and that while subsequent policies could be considered, they would not be determinative. The Board concluded that the consent applications do not conform to the Official Plan and they do not have appropriate regard for s. 51 (24) of the Planning Act. Approval of the application would be contrary to the intent of the Official Plan to limit development of waterfront areas on Lake Isabella. The Official Plan policies with regard to access were not achieved because access would be provided on a private road over which a proper registered right of way does not exist. With regard to the zoning appeal, the Board found that it is appropriate to place the lands into the Limited Service Residential zone, where land is not accessed by a public road.

Document(s):

Township of Muskoka Lakes v. Ontario (Natural Resources)

July 21, 2014

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Application/issue:

The Township of Muskoka Lakes appeals the order of the Divisional Court dismissing its application for judicial review of the decision of the Minister of Natural Resources to prohibit access to certain Crown lands adjacent to Bala Falls under section 28(1) of the Public Lands Act, and for orders: (1) declaring that a portage protected by section 65(4) of the Public Lands Act passes over the site; (2) prohibiting the Minister or any other person from interfering with that portage; (3) setting aside the water frontage at the Site for recreational purposes and access purposes pursuant to section 3 of the Public Lands Act; and (4) prohibiting any interference with that frontage.

Held:

Appeal dismissed

Reasons:

The Court sees no basis for interfering with the Divisional Court’s decision, as they believe that the Divisional Court identified the appropriate standard of judicial review and applied it correctly. Given the safety concerns, the Minister’s decision was reasonable, even if a portage protected by section 65(4) existed, or section 3 applied to the site. The Minister’s decision fell within a range of possible, acceptable outcomes, which are defensible in respect of the facts and law. Further, subject to any aboriginal and treaty rights, the Minister has the right to make an order under section 28(1) that has the effect of prohibiting passage over portages and Transport Canada has also provisionally concluded that navigation would not be substantially impacted by the proposed waterpower generation facility. The Court of Appeal agrees with the Divisional Court that the Minister’s decision was reasonable without having to make findings on the existence of the alleged portage and the sufficiency of the frontage.

Document(s):

Boswell v. Seguin (Township)

May 27, 2014

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Application/issue:

This variance hearing was uncontested. On Lake Joseph, there are many substantial boathouses with upper living quarters. Some are larger than what is permitted by today’s zoning – which was sometimes adopted years after these structures were built. Boswell (Applicant) owned on of those non-complying structures in the Township of Seguin. The Applicant proposed a boatlift apparatus, intended for the boat moored under her awning. Although these devices spend much of their time underwater, By-law 2006-25 treats any “in-water shoreline structure or facility” in much the same way as a building. The Applicant applied for three variances: to reduce the sideyard setback; to allow a corresponding increase in width of the boathouse; and to allow an adjustment in the allowable shoreline frontage. The Committee of Adjustment received letters of opposition and the Committee turned down the variances. The Applicant then appealed to the Board.

Held:

Appeal allowed

Reasons:

Although there are many instances where concerns would be justified, the Board was not convinced that they apply to the fact situation here. In terms of visual impact, and respect for the water and the shoreline: at present, the view is of a boat at water level, under a cantilevered awning; under this proposal, the only change to that vista would be that the boat would be propped, instead of being at water level. The Board was not persuaded that, in this specific case, the incremental act of propping the boat under the awning would represent a significant visual digression – as viewed from the lake. The Board concludes that the evidence makes the proposed variances minor, for the purposes of the Planning Act.

Document(s):

Town of Bracebridge v. Bakema (Little Europe Resort)

March 20, 2014

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Application/issue:

The Town of Bracebridge passed a comprehensive Zoning By-law No. 2006-120, for which there was a site-specific appeal filed by the Little Europe Resort. The Board authorized a zoning change to CT-9H subject to the provision that a site plan agreement be entered into. The Town in its motion to the Board is requesting that the Board issue its final Order without a site plan agreement.

Held:

Motion allowed, final Order issued

Reasons:

Roelf Bakema was agreeable to the change and none of the other original appellants appeared at the hearing. The Board grants the motion by the Town of Bracebridge based upon the uncontested affidavit evidence of Matthew Holmes and the Board will issue its final Order with respect to By-law No. 2006-120.

Document(s):

Robertson v. Town of Bracebridge

January 9, 2014

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Application/issue:

Caroline Robertson and Jill Popkey (Applicants/Appellants) have appealed from the refusal of the Council of the Town of Bracebridge to approve a Zoning By-law Amendment for the subject property. The property is designated Residential by the Town of Bracebridge Official Plan and zoned Residential Type 1 by Zoning By-law No. 2006-120. The purpose and effect of the proposed Zoning By-law is to rezone the subject property to Residential Type 1 – Special 56 in order to permit all uses in the R1 Zone including one accessory apartment dwelling unit. The current application results from a complaint by a local resident who suspected that this location contained multiple dwellings. As a result, the Building Department directed the owners to either comply with the permitted use or to apply for permission to allow an accessory apartment unit.

Held:

Appeal dismissed

Reasons:

The Board, in having reviewed and considered the oral and documentary evidence of the parties and the submissions of counsel, finds that the rezoning proposal fails to conform to the spirit and intent of certain policies of the Official Plan. More importantly, the Board is not convinced that the proposal is consistent with the principles of good land use planning, nor can it be seen to have sufficient regard for the public safety and interest. The Board’s view, by virtue of the shape and dimensions of the subject property along with the existing zoning standard deficiencies, permitting a second living/dwelling unit at this location is not conducive to the principles of good planning.

Document(s):

Township of Muskoka Lakes v. Ontario (Minister of Natural Resources)

August 19, 2013

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Application/issue:

The Township sought judicial review of the Minister of Natural Resource’s decision to issue a section 28 order prohibiting the use by the public of Crown land adjacent to the Bala Falls. The MNR was prepared to lease the lands to Swift River Energy Ltd. to develop the site for hydroelectric power. The Township sought the following declarations, orders and relief: (1) declaring that a portage protected by section 65(4) of the Public Lands Act passes over the site; (2) prohibiting the Minister or any other person from interfering with that portage; (3) setting aside the water frontage at the Site for recreational purposes and access purposes pursuant to section 3 of the Public Lands Act; and (4) prohibiting any interference with that frontage.

Held:

Application dismissed

Reasons:

The Township has failed to establish that the Ministry’s decision to issue a Notice under s. 28 was unreasonable such that it could invoke our right to interfere with it under the court’s judicial review authority. There can be no reasonable dispute that there are safety issues concerning these lands that include rapids, waterfalls and dams among other hazards. It may be that there were other alternatives to address those safety concerns but the fact that the Ministry chose between different options does not constitute their decision to adopt one option over another as unreasonable.

Document(s):

Craig Mills v. Township of Muskoka Lakes

August 8, 2013

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Court:

Application/issue:

Appeal to the Board for minor variance to permit height of 26.5 ft. of an accessory structure (garage) whereas the maximum permitted height is 20.0 ft. pursuant to s. 45(12) of the Planning Act.

Held:

Appeal allowed

Reasons:

A mediation process was held in which both parties agreed that the Applicant would not use the garage as a sleeping cabin or for habitable space. In addition, there were no other negative impacts from the variance and the Township’s Director of Planning concluded that the variance was minor. Therefore, the Board allowed the variance.

Document(s):

Still’s Bay Landing Corporation v. Township of Muskoka Lakes

April 24, 2013

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Court:

Application/issue:

Still’s Bay Landing Corporation applied to amend the Township of Muskoka Lakes Zoning By-law 87-87 in order to increase the size of the marina from 38 to 50 slips. The council of the Township of Muskoka Lakes denied the request. Still’s Bay Landing Corporation appealed its denial to the Board. The subject lands are designated “Waterfront” in both the Regional Municipality of Muskoka Official Plan and the Township Official Plan. The property in question is zoned Waterfront Commercial (WC2) in the Township of Muskoka Lakes Zoning By-law 87-87. The By-law limits the dock length to 80 feet and the width to 25% of the lot frontage. The Appellant/Applicant originally applied for a dock length of 150 feet and width of 75.6% and a side lot setback of two feet where the By-law requires 30 feet.

Held:

Appeal allowed in part

Reasons:

The Board accepts that there are problems with the existing use of the marina. It also accepts that marina operations such as this are necessary to the development of recreational tourism and cottage development. The Provincial Policy Statement, and both Official Plans provide for recreational and cottage development that is a major component of the local economy. The Board finds that the zoning amendment presented before the board is consistent with the Provincial Policy Statement, conforms to the Official Plans and represents good planning.

Document(s):

Township of Muskoka Lakes Heritage Designation

March 13, 2013

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Court:

Application/issue:

Intention to designate three properties known as Township Dock at Lake Muskoka; Portage Landing at Moon River; and Shield Parking Lot, in the Town of Bala under the Ontario Heritage Act R.S.O. 1990, Chapter O.18, amended to 2009.

Held:

Properties designated

Reasons:

The Board found that under s. 29 of the Act, the Township had conducted a reasonable and fair process and the properties hold cultural heritage value and interest to the community. The Board finds that the Township met the requirement of s. 29(3) and s. 29(4); and finds that Swift River Energy’s argument is redundant. Since the Township is not in violation of the Act and the properties are identified as holding cultural heritage value, the Board finds that the Township can proceed with designating the three properties.

Document(s):

Durfy v. Township of Muskoka Lakes

December 19, 2012

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Application/issue:

Appeal an application for a minor variance to increase permitted lot coverage from 10% to 14.1% of the lot and 14.3% of the lot within 200 feet of the high water mark. The subject property is designated “Waterfront” and zoned WR1 in Zoning By-law No. 87-87.

Held:

Appeal allowed

Reasons:

The Board finds that the modest addition to the cottage is far enough removed from the waterfront and buffered by trees to have minimal impact on the views from the lake. The addition meets the general intent of the zoning by-law because it is hidden from view, does not interfere with development of abutting property and is not any more of a precedent than that of the abutting lands.

Document(s):

Mehlenbacher v. Township of Muskoka Lakes

December 13, 2012

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Court:

Application/issue:

Appeal for two minor variances to expand an existing two storey boathouse by adding a 198 square foot covered deck to the second storey. The variance would allow relief for the cumulative width of 15% whereas the by-law permits 13%.

Held:

Appeal dismissed

Reasons:

The Board finds that the addition to the boathouse will have an impact on the views from the lake and the covered deck would fundamentally change the view from the water. The OP sets limits for the development of waterfront structures based upon the size of the lake, the coverage of structures, and the frontage of the lot. The evidence clearly demonstrated that a significant area of natural shoreline would be blocked by the new roof and would increase the dominance of the man-made environment as opposed to the natural environment. Therefore, the Board finds the scale of the variance to be excessive because it transfers the rights of larger lots (over 400 feet) to a much smaller lot.

Document(s):

Train v. Weir

November 13, 2012

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Court:

Application/issue:

Train moves under s. 96 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 for leave to appeal the decision to the Divisional Court on a question of law. The original appeal was granted to Mr. Weir resulting in the Board declining the building of a boathouse by Mr. Train.

Held:

Leave to Appeal declined

Reasons:

The moving party has not satisfied the Court that the Board failed to adhere to the underlying principles in having regard to council’s decision. Therefore, the Court does not find that the Board’s application of the principle is open to substantial doubt as an error of law. The Court also finds that the argument of possible abuse of hearsay evidence is not something that would ordinarily meet the test for leave to appeal to the Divisional Court, and does not so in this instance.

Document(s):

Sherman v. Township of Muskoka Lakes

November 6, 2012

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Subject:

Court:

Application/issue:

Appeal of the refusal to pass an amendment to the Zoning By-law No. 87-87 to allow variances to a cottage dwelling. The variance are lot coverage of 13.5% rather than maximum 10%; a setback of 44 ft. from water’s edge rather than required 45 ft.; and a landing are of 60 sq. ft. from the required front yard setbacks, whereas s. 3.1.2.b.ii) for the By-law permits 50 sq. ft.

Held:

Appeal allowed

Reasons:

The Board finds that there are no matters of Provincial interest affected by this application and it is in conformity with the intent and purpose of the District of Muskoka OP. The OP through a rigorous set of policies does allow for the consideration of exemptions in specific cases subject to a review of criteria set out in s. F.1.6 By-law Administration and policies found in s. B “Waterfront.” There would be no cumulative impacts on this or other lands in the immediate area and to the shoreline.

Document(s):

Robinson v. Township of Muskoka Lakes

October 24, 2012

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Court:

Application/issue:

The appellants are appealing a decision from the Township of Muskoka for the refusal of a minor variance from Zoning By-law 87-87, which would permit a proposed garage/storage building on the subject property. The variances are relief from s. 7.3.1 of ZBL 87-87; a lot are of 0.4 acres rather than the required 1.0 acres; a lot frontage of 110 ft, rather than required 200 ft; and a maximum height of 20.5 ft, rather than maximum height of 20 ft.

Held:

Appeal allowed with conditions

Reasons:

The Board finds that there are no matters of Provincial interest affected by this application and that the applications are in conformity with the intent and purpose of the District of Muskoka OP and the Township of Muskoka Lakes OP as amended by OPA No. 40. It is also the determination of the Board that the relief being sought out is minor and will have no adverse impact on any abutting properties, nor will the plans not comply with the standards of the municipality or the Ontario Building Code.

Document(s):

Sculati v. Township of Muskoka Lakes

July 16, 2012

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Court:

Application/issue:

An appeal against a decision of the Township of Muskoka Lakes approving By-law Amendment No. 2012-15 with provisions requiring a proposed dwelling to have a minimum front yard setback of 50 feet and limiting the size of the dwelling to a maximum of 4700 square feet for the subject property. The purpose of the appeal is to obtain relief from the two above-noted provisions. The subject property is a waterfront lot that previously had been two separate lots, which now have been merged and contains two cottages.

Held:

Appeal allowed in part

Reasons:

In consideration of the evidence and factors presented before the Board, including the opinion of the Planner, the Board finds that the revised By-law 2012-15 is appropriate and it should be approved. He indicated that revised By-law 2012-15 raises no issues with regard to the Provincial Policy Statement; it conforms to the Township Official Plan and represents good planning.

Document(s):

Davis v. Township of Muskoka Lakes

June 22, 2012

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Court:

Application/issue:

Appeal to the Board of the refusals of the Township to approve an Official Plan Amendment and Zoning By-law Amendment to permit a two-storey boathouse. The OPA will permit lot coverage of 11.9% whereas maximum is 10%. The ZBLA will permit side yard setback of 42 feet rather than the required 45 feet.

Held:

Appeal granted

Reasons:

Settlement was reached and appeal of OPA was withdrawn. Further, the ZBLA conforms to the OP and represents good planning, will have no adverse environmental impacts, and the built-form of the boathouse will not dominate the natural environment and it will maintain the existing character of the shoreline. In addition, the proposed development will only cover 16.3% of the actual shoreline, as compared to the 25.0% limit contained in the OP.

Document(s):

Train v. Weir

June 5, 2012

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Court:

Application/issue:

Appeal to the Board of Town council’s decision to pass Zoning By-law 2011-157, permitting the construction of the boathouse, as it does not conform to the town’s Official Plan; it does not comply with the spirit and intent of Comprehensive ZBA 2010-04; and the matter was previously dealt with by the Town.

Held:

Appeal granted

Reasons:

The Board’s reasons have to do with the natural environment and culture of the area, as there are not many boathouses near Portage Bay, and therefore maintaining a natural shoreline environment with the construction of boathouse becomes challenging. Further, the Portage Bay constitutes a narrow waterway by the definition of the zoning by-law, however the distance from shoreline to shoreline is approximately 90 metres, less than the 150 metres required to remove it from this definition, and therefore the boathouse is not permitted.

Document(s):

Savelli v. Elliot

February 6, 2012

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Subject:

Court:

Application/issue:

Appeal to Board for minor variance of construction of two-storey garage, seeking relief in s. 3.1.2.a of By-law 87-87, as amended, being the maximum coverage of buildings on a lot and a variance of the maximum coverage permitted on building from the high water mark of 359 square feet.

Held:

Appeal allowed with conditions

Reasons:

The land-use planner found that the two-car garage will meet all other zoning by-law requirements except for lot coverage. In addition, the variance is considered minor because the OP regards anything less than 1/10 over the permitted lot coverage as minor. For these reasons, the Board is satisfied that the proposed variances meet the tests in subsection 45(1) of the Planning Act, are in the public interest and represent good planning.

Document(s):

Moss v. Town of Bracebridge

July 11, 2011

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Subject:

Court:

Application/issue:

Appeal from a decision of the Town of Bracebridge to pass Zoning By-law Amendment 2011-011, which rezoned lands from R1-2 to R3-18. The purpose of the By-law Amendment is to allow for the construction of 40 townhouse units on a cul-de-sac and two semi-detached dwelling units along with parkland and a storm water management facility. Counsel for the applicant brought a motion to dismiss the appeal without a hearing, pursuant to subsection 34(25) of the Planning Act.

Held:

Motion to dismiss the appeal is allowed

Reasons:

The Board finds that the appellant’s reasons for appeal are not substantiated and therefore the Board concludes from the appellant’s submissions that there would be nothing that would allow the Board, in whole or in part, to allow all or part of her appeal. There is no compelling evidence that the Town of Bracebridge failed to give proper notice as prescribed by the Planning Act of the subject application and Zoning By-law Amendment No. 2011-011, and therefore there are no technical grounds for appeal on that basis.

Document(s):

Colville-Reeves v. Jobin

April 25, 2011

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Court:

Application/issue:

A motion requesting to adjourn a hearing, which would allow the Moving Party sufficient time to measure certain elements along the shoreline of the Respondent’s lakefront property. This matter involved an appeal of a decision by the Town of Gravenhurst to amend Zoning By-law 95-54 to permit the construction of a 12.5 metre dock. The appellant states that the dock is a safety hazard to boaters as it is located in a “Narrow Waterway.”

Held:

Motion dismissed

Reasons:

The Board finds that the accuracy of the measurements that they had received with the application for the building permit for the boathouse were satisfactory, and therefore the Moving Party will not be prejudiced if the hearing goes ahead as scheduled. Hearing is scheduled for one day only.